Tooby's California Post-Conviction Relief for Immigrants
Detailed Table of Contents
- Acknowledgements
- TOC Detailed Table of Contents
- Preface
- Table of Abbreviations
- § 1 Introduction and Overview
- §1.1 I. Origins of the Problem
- §1.2 II. The Challenge of Obtaining Post-Conviction Relief
- §1.3 III. Outline of This Volume
- §1.4 IV. Overview of Relief Available under California Law
- §1.5 V. Other Resources
- § 2 Immigration Procedure
- §2.1 I. Substantive Immigration Law
- §2.2 A. Deportation
- §2.3 B. Inadmissibility
- §2.4 C. Relief in Immigration Court
- §2.5 II. Removal Proceedings
- §2.6 A. Detention
- §2.7 B. Hearing
- §2.8 C. Appeal
- §2.9 D. Petition for Review in Circuit Court
- §2.10 E. Motions to Reopen and Reconsider
- § 3 Evaluating Post-Conviction Chances
- §3.1 I. Introduction and Overview
- §3.2 II. A Triage Guide to Post-Conviction Cases
- §3.3 A. The Current Status of the Client
- §3.4 1. The Client Is Clean and Sober
- §3.5 2. The Client Has Strong Equities
- §3.6 3. The Client Has Served the Time and Is Currently Out of Custody
- §3.7 4. The Client Has No Outstanding or Potential Arrest Warrants
- §3.8 5. The Client Has No Current Aggravated Re-entry Exposure
- §3.9 6. The Client Is Lawfully Present in the United States
- §3.10 B. The Criminal Situation
- §3.11 1. A Small Criminal Case Has Large Immigration Effects
- §3.12 2. The Client Has 1 or Few Damaging Convictions
- §3.13 3. Number and Diversity of Original Charges
- §3.14 4. The Evidence of Guilt Is Weak, or the Client Has a Plausible Claim of (Partial) Innocence
- §3.15 5. The Client Was Charged Jointly With 1 or More Codefendants
- §3.16 6. A Relatively Minor Change in Conviction or Sentence Will Solve the Immigration Problem
- §3.17 7. There Is Small Risk the Client Will Receive Additional Time in Custody if the Case Is Reopened and the Client Is Reconvicted
- §3.18 a. Adverse Criminal Consequences
- §3.19 b. Adverse Immigration Consequences
- §3.20 8. The Jurisdiction Where the Conviction Occurred Is Relatively Sympathetic
- §3.21 9. Incomplete Initial Defense Investigation
- §3.22 10. Technical Problems with Prosecution Case
- §3.23 C. The Timing of the Case
- §3.24 1. Federal Time Limits
- §3.25 a. Motion to Vacate Sentence Under 2255
- §3.26 b. Coram Nobis Time Limits
- §3.27 c. Attacking State Convictions
- §3.28 2. California Time Limits
- §3.29 a. Habeas Corpus and Nonstatutory Constitutional Motion to Vacate
- §3.30 b. Coram Nobis
- §3.31 c. Motion to Vacate Conviction for Violation of Penal Code §x1016.5
- §3.32 d. Expungement Pursuant to Penal Code 1203.4(a)
- §3.33 e. Motion to Reduce Felony to Misdemeanor
- §3.34 3. The Client Has 6 Months or More Before Irrevocable Immigration Damage Occurs
- §3.35 4. There Is Still Time To Reopen the Immigration Case if Criminal Convictions Are Eliminated
- §3.36 5. The Records Necessary To Establish Error in the Criminal Case Still Exist
- § 4 Investigation
- §4.1 I. Investigating the Case
- §4.2 A. In General
- §4.3 B. The Timing of the Case
- §4.4 C. Dealing With Bias Against Noncitizens
- §4.5 II. Interviewing the Client
- §4.6 A. Preparation
- §4.7 1. Special Considerations
- §4.8 2. NonEnglish Speaking Clients
- §4.9 3. Basic Goals
- §4.10 4. Client's Culture
- §4.11 B. Client Interview
- §4.12 1. Basic Immigration Status Questionnaire
- §4.13 2. Screening for U.S. Citizenship
- §4.14 a. Born in the United States
- §4.15 b. Born to U.S. Citizen Parent(s) Abroad (Acquired Citizenship)
- §4.16 c. Naturalization
- §4.17 d. Child of Naturalized Citizen (Derivative Citizenship)
- §4.18 e. Nationals of the United States
- §4.19 f. American Indians Born in Canada
- §4.20 g. Denaturalization
- §4.21 3. Determining Immigration Status
- §4.22 4. Advice for Client
- §4.23 5. Client's Equities
- §4.24 6. How Important Are the Immigration Consequences to the Client?
- §4.25 7. Criminal Issues
- §4.26 a. The Basic Criminal Case Interview
- §4.27 b. Determining Which Criminal History Reports to Order
- §4.28 c. Prior Convictions and Their Validity
- §4.29 8. Obtaining Information About the Client's Culture
- §4.30 9. Obtaining Medical Information
- §4.31 III. Obtaining Immigration Records
- §4.32 A. FOIA Requests
- §4.33 B. Information on Amnesty Clients
- §4.34 IV. Obtaining Criminal Records
- §4.35 A. Criminal History Reports
- §4.36 1. FBI Criminal History Reports
- §4.37 2. State Criminal History Reports
- §4.38 3. Motor Vehicle Conviction History
- §4.39 4. Correcting Errors in Criminal Histories
- §4.40 B. Obtaining Court Files and Transcripts
- §4.41 C. Record Destruction Does Not Eliminate Convictions
- §4.42 V. Obtaining Assistance from Immigration Counsel
- §4.43 A. Finding Immigration Counsel
- §4.44 B. Initial Consultation
- §4.45 C. On-Going Consultation
- §4.46 D. After Final Disposition of Criminal Case
- §4.47 VI. Obtaining Assistance from Former Counsel
- §4.48 A. Obtaining Attorney's Case File
- §4.49 1. In General
- §4.50 2. Conflict of Interest
- §4.51 3. Attorney-Client and Work-Product Privileges
- §4.52 B. Interviewing Former Defense Counsel
- §4.53 1. Duty to Cooperate With Successor Counsel
- §4.54 2. Mistakes Should Not Trigger Discipline or Malpractice Liability
- §4.55 3. General Considerations
- §4.56 4. Corroborating the Client's Assertions of Prejudice
- §4.57 VII. Obtaining Information About Client's Culture
- §4.58 A. Cultural Experts
- §4.59 B. Cultural Defenses
- §4.60 C. Cultural Mitigation Issues
- §4.61 D. Persecution and Torture of Client if Deported
- §4.62 VIII. Cultural Effects on Medical Investigation
- §4.63 IX. Foreign Investigations
- § 5 Developing a Strategy
- §5.1 I. General Procedure and Approach
- §5.2 A. Introduction
- §5.3 1. Tasks of Post-Conviction Counsel
- §5.4 2. Strategic Factors
- §5.5 B. Preparing a Chronology
- §5.6 C. Diagnosing the Immigration Problem
- §5.7 D. Identifying the Minimum Necessary Changes in Criminal History
- §5.8 1. Work for Post-Conviction Counsel
- §5.9 2. Work for Immigration Counsel
- §5.10 3. Double-Checking the Strategy with Cooperating Counsel
- §5.11 E. Effect of Changes in the Law
- §5.12 II. Choosing A Post-Conviction Vehicle
- §5.13 A. Elimination of a Conviction
- §5.14 B. Reduction of a Sentence
- §5.15 C. Reduction of the Total Amount of Custody Time Actually Served
- §5.16 D. Reduction of the Level of the Offense
- §5.17 E. Record-Clearance Under State Rehabilitative Statutes
- §5.18 III. Recognizing Possible Adverse Consequences of Obtaining Post-Conviction Relief
- §5.19 A. Adverse Criminal Consequences
- §5.20 B. Adverse Immigration Consequences
- §5.21 IV. Obtaining the Relief
- § 6 Vehicles for Vacating a Conviction
- §6.1 I. Introduction
- §6.2 A. Introduction
- §6.3 B. Overview of Forms of Relief and Immigration Effect
- §6.4 II. Immigration Consequences of an Order Vacating a Conviction: Obtaining an Order the Immigration Authorities Will Respect
- §6.5 A. A Legally Invalid Conviction Cannot Trigger Immigration Consequences
- §6.6 1. The Long-Standing Rule
- §6.7 2. The New IIRAIRA Definition of Conviction Did Not Change the Basic Rule
- §6.8 B. An Order Vacating a Conviction as Legally Invalid Eliminates the Conviction for All Immigration Purposes
- §6.9 C. Reopening Removal Proceedings After a Conviction Has Been Vacated
- §6.10 D. A Conviction Vacated on Purely Humanitarian Grounds, or Under a State Rehabilitative Statute, May Continue to Exist for Immigration Purposes
- §6.11 1. Humanitarian Grounds
- §6.12 2. State Rehabilitative Statutes
- §6.13 E. The DHS Cannot Collaterally Attack, in Immigration Court, the Validity of a Criminal Court Order Vacating a Conviction
- §6.14 F. The DHS Argument That An Order Vacating a Conviction is Beyond the Jurisdiction of the Criminal Court and Should Not Be Honored
- §6.15 III. Motion to Withdraw Guilty Plea Under Penal Code 1018
- §6.16 IV. Direct Appeal from Conviction
- §6.17 A. Requirements for Felony Appeals
- §6.18 B. Requirements for Misdemeanor Appeals
- §6.19 C. Procedure
- §6.20 1. Finality of Decision
- §6.21 2. Filing a Late Notice of Appeal
- §6.22 3. Attacking a Waiver of Appeal
- §6.23 4. Negotiating a Better Result on Appeal
- §6.24 V. Writ of Habeas Corpus
- §6.25 A. General Requirements for Issuance of the Writ
- §6.26 B. Federal Habeas Corpus . Generally
- §6.27 C. The Petition Must Be Timely Filed
- §6.28 1. Federal Habeas Corpus and the AEDPA Statute of Limitations
- §6.29 a. The Starting Date
- §6.30 b. Statutory Tolling
- §6.31 c. Equitable Tolling
- §6.32 2. Attacking Federal Convictions
- §6.33 3. California Habeas Corpus
- §6.34 D. The Requirement of Custody
- §6.35 1. Registration Requirements as Custody
- §6.36 2. Immigration Custody Insufficient
- §6.37 3. The Future
- §6.38 4. Case Not Moot So Long As Collateral Consequences, Such as Immigration Consequences, Damage the Defendant
- §6.39 E. Procedure
- §6.40 F. Raising Habeas Issues in Court of Appeal
- §6.41 VI. Petition for Writ of Error Coram Nobis
- §6.42 A. Procedure
- §6.43 B. Appeal from Denial of Coram Nobis
- §6.44 VII. Nonstatutory Motion to Vacate on Constitutional Grounds
- §6.45 A. A Nonstatutory Motion to Vacate is a Conceptually Different Vehicle for Post-Conviction Relief than Coram Nobis
- §6.46 B. The Trial Court Retains the Inherent Authority to Grant a Post-Judgment Motion to Vacate a Guilty Plea Based on Ineffective Assistance of Counsel
- §6.47 C. Procedure for Motions To Vacate In General
- §6.48 D. The Denial of a Nonstatutory Motion to Vacate Is Appealable Where the Basis of the Motion Raises Matters Outside the Record of the Case
- §6.49 VIII. Statutory Motion to Vacate Based on Judge's Failure to Provide 1016.5 Warning of Possible Adverse Immigration Consequences
- §6.50 A. A Motion to Vacate is the Proper Manner by Which to Raise a Violation of this Statute
- §6.51 B. Timeliness of Motion to Vacate
- §6.52 C. Procedure for Motions To Vacate In General
- §6.53 1. The Court May Decide a Motion Without Hearing Live Testimony
- §6.54 2. Non-Party Declarations May Not Be Excluded for Lack of Cross-Examination
- §6.55 3. Defendant's Declaration Should Not Be Excluded for Lack of Cross-Examination Unless Court Grants Hearing With Live Testimony
- §6.56 D. Proving Citizenship
- §6.57 IX. Attacking Misdemeanor Convictions
- §6.58 X. Dismissals Under Penal Code 1385
- §6.59 A. Immigration Effects of Dismissal
- §6.60 1. Dismissal of Conviction
- §6.61 2. Dismissal of Sentence Enhancement
- §6.62 3. Dismissal of Sentence
- §6.63 4. Dismissal of Language From Charge
- §6.64 B. Grounds for Dismissal
- §6.65 1. Interests of Justice
- §6.66 2. Grounds of Legal Invalidity
- §6.67 3. Equitable Grounds
- §6.68 4. Proper Grounds
- §6.69 5. Improper Grounds
- §6.70 6. Abuse of Discretion
- §6.71 C. Procedural Requirements
- §6.72 1. Who May Make Motion
- §6.73 2. Timing of Dismissal
- §6.74 3. Statement of Reasons
- §6.75 4. Dismissal as Bar
- §6.76 5. Appellate Review
- § 7 Grounds for Vacating the Conviction
- §7.1 I. Geography of the Field
- §7.2 II. Violations of the Right to Counsel
- §7.3 A. Denial of Counsel
- §7.4 1. Representation by Non-Counsel
- §7.5 2. Invalid Waiver of Right to Counsel
- §7.6 3. Refusal to Allow Self-Representation
- §7.7 B. Ineffective Assistance of Counsel
- §7.8 1. Generally -- Deficient Performance and Prejudice
- §7.9 2. Failure to Conduct Competent Investigation of the Facts
- §7.10 3. Failure to Research the Law
- §7.11 4. Failure to Advise the Defendant of the Elements and Defenses
- §7.12 5. Failure to Advise the Defendant of Constitutional Rights at Plea
- §7.13 6. Failure to Assist the Defendant to Withdraw the Plea
- §7.14 7. Failure to Consult the Defendant about an Appeal
- §7.15 8. Ineffective Assistance of Counsel on Appeal
- §7.16 C. Failure to Defend Against the Immigration Consequences of the Plea
- §7.17 1. Deficient Performance
- §7.18 2. Affirmative Misadvice
- §7.19 3. Failure to Advise
- §7.20 4. Failure to Defend Against Conviction and Sentence
- §7.21 a. Failure to Seek out an Immigration-safe Alternative Disposition
- §7.22 b. Failure to Seek Out an Immigration-safe Alternative Sentence
- §7.23 5. Failure to Investigate Mitigating Facts
- §7.24 a. Basic Approach
- §7.25 b. Sample Argument
- §7.26 6. Failure to Investigate the Immigration Consequences of Trial
- §7.27 7. Prejudice
- §7.28 D. Conflict of Interest
- §7.29 1. Multiple Representation of Conflicting Interests
- §7.30 2. Conflict of Interest in Failing to Raise Counsel's Own Ineffectiveness
- §7.31 3. Conflict Between Defendant and Counsel
- §7.32 III. Invalid Guilty Pleas
- §7.33 A. Ineffective Waiver of Jury Trial
- §7.34 1. The Failure to Explain the Nature of the Right to a Jury Trial
- §7.35 2. Involuntary Waiver of the Right to a Jury Trial
- §7.36 B. Ineffective Waiver of Right to Remain Silent
- §7.37 C. Ineffective Waiver of Confrontation
- §7.38 D. Failure to Establish Factual Basis
- §7.39 E. Failure to Inform Defendant of the Nature of the Offense
- §7.40 F. Failure to Inform Defendant of Consequences of Plea
- §7.41 G. Breach of Plea Bargain
- §7.42 H. Promissory Estoppel
- §7.43 I. Failure to Disclose Plea Agreement on the Record
- §7.44 J. Coercion to Enter Plea
- §7.45 K. Failure to Establish Mental Competence to Enter Plea
- §7.46 L. Failure to Advise the Noncitizen Defendant of the Right to Contact the Consulate
- §7.47 IV. Violations of the Right to an Interpreter
- §7.48 A. The Right to an Interpreter in Criminal Proceedings
- §7.49 B. Violations of the Right to an Interpreter
- §7.50 C. Grounds for Invalidating Conviction for Violation of the Right to an Interpreter
- §7.51 V. Other Grounds For Vacating Guilty Pleas
- §7.52 A. Jurisdictional Defects
- §7.53 B. Newly Discovered Evidence
- §7.54 C. Prosecution Withholding of Exculpatory Evidence
- § 8 Vacating or Reducing the Sentence
- §8.1 I. Introduction
- §8.2 II. Immigration Consequences of Sentence
- §8.3 A. Definition of "Sentence Imposed"
- §8.4 1. What Is Included in "Sentence Imposed"
- §8.5 2. California Youth Authority Commitment Does Not Qualify as a Sentence to Confinement
- §8.6 B. Length of "Sentence Imposed"
- §8.7 1. Aggravated Felonies Requiring 1-Year "Sentence Imposed"
- §8.8 a. The 1-Year List
- §8.9 b. Reduction of Sentence Below 1 Year
- §8.10 2. Petty Offense Exception to Inadmissibility Requires Sentence Imposed of 6 Months or Less
- §8.11 a. Petty Offense Exception Generally
- §8.12 b. Effects of Petty Offense Exception in Specific Immigration Contexts
- §8.13 3. A Noncitizen Becomes Inadmissible if Convicted of 2 or More Offenses for Which the Aggregate Sentences to Confinement Totaled 5 Years or More
- §8.14 4. Mandatory Detention Is Triggered if a Noncitizen Is Deportable for 1 Conviction of a Crime of Moral Turpitude for Which a Sentence of 1 Year or More Has Been Imposed
- §8.15 5. Restriction on Removal (Formerly Withholding of Deportation) Requires a Noncitizen to Avoid an Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
- §8.16 6. A Conviction Is Considered a Misdemeanor, for Purposes of Adjustment of Status, if the State Designates It as a Misdemeanor and the Sentence Imposed Is 1 Year or Less, Even if the Maximum Sentence Is Greater
- §8.17 C. Length of Actual Confinement
- §8.18 1. To Be Eligible for the Former Waiver of Deportability under INA 212(c), the Noncitizen Must Avoid Service of an Actual Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
- §8.19 2. A Noncitizen Is Disqualified from Showing Good Moral Character if Actually Confined as a Result of Criminal Convictions for a Total of 180 Days or More
- §8.20 3. Situations that Require Good Moral Character
- §8.21 D. Naturalization May Not Be Granted if the Applicant Is Currently On Probation or Parole
- §8.22 E. The Sentencing Judgment, Which Forms Part of the "Record of Conviction," Can Lead to Adverse Immigration Consequences
- §8.23 III. Obtaining an Effective Order Vacating or Reducing a Sentence
- §8.24 A. Effect of Vacating the Conviction
- §8.25 B. Vacating the Original Sentence on a Ground of Legal Invalidity
- §8.26 C. Obtaining an Order Modifying the Original Sentence
- §8.27 D. Modifying a Sentence Under a State Rehabilitative Statute
- §8.28 IV. Procedural Vehicles for Vacating or Reducing the Sentence
- §8.29 A. Direct Appeal from Sentence
- §8.30 B. Petition for Writ of Habeas Corpus
- §8.31 C. Non-Statutory Motion to Vacate Sentence
- §8.32 D. Petition for a Writ of Error Coram Nobis
- §8.33 E. Motion to Correct Void Sentence
- §8.34 F. Commutation or Correction of Sentence Under Penal Code §x1170
- §8.35 G. Motion to Shorten Probation
- §8.36 1. Shortening Probation in Driving Under the Influence Cases
- §8.37 2. Note on Shortening Parole
- §8.38 V. Grounds to Vacate the Sentence
- §8.39 A. Jurisdictional Defects
- §8.40 B. Substantive Constitutional Guarantees
- §8.41 C. Due Process Rights in the Sentencing Hearing
- §8.42 D. Violations of the Right to Counsel
- §8.43 1. The Right to Counsel
- §8.44 2. Ineffective Assistance Generally
- §8.45 3. Immigration-Related Ineffective Assistance at Sentencing
- §8.46 4. Examples of Ineffective Assistance of Counsel with Respect to the Immigration Consequences of the Sentence
- §8.47 a. Moral Turpitude Offenses
- §8.48 b. Length of Sentence of Incarceration
- §8.49 c. Aggravated Felonies
- §8.50 d. Anticipating Post-Conviction Relief
- §8.51 E. Seeking a Judicial Recommendation Against Deportation
- § 9 Motions to Reduce the Level of the Offense
- §9.1 I. Introduction
- §9.2 II. Immigration Consequences of Reducing Level of Offense
- §9.3 A. Most Recent Sentence Controls
- §9.4 B. Felonies and Misdemeanors in Immigration Law
- §9.5 1. Petty Offense Exception
- §9.6 2. Crimes of Violence Under 18 U.S.C. 16(b)
- §9.7 3. Immigration Effects of Felony Conviction
- §9.8 4. Immigration Effects of Misdemeanor Conviction
- §9.9 C. Felonies and Misdemeanors Under California Law
- §9.10 1. Non-Reducible Felonies
- §9.11 2. Reducible Felony-Misdemeanors
- §9.12 D. Reduction of Maximum Sentence
- §9.13 1. Petty Offense Exception
- §9.14 2. Single Crime of Moral Turpitude Deportation Ground
- §9.15 III. Post-Conviction Reduction of Felony to Misdemeanor
- §9.16 A. Motion to Reduce Felony to Misdemeanor
- §9.17 1. Basic Requirements
- §9.18 2. Reducible Offenses
- §9.19 3. The Required Sentence
- §9.20 a. Generally
- §9.21 b. Suspended Prison Sentence Prevents Reduction
- §9.22 4. Standard for Granting the Reduction
- §9.23 5. Procedure
- §9.24 6. Timing of the Motion
- §9.25 7. Reduction After Termination of Probation
- §9.26 8. Reduction After Grant of Expungement
- §9.27 9. Review of Grant or Denial of Motion to Reduce
- §9.28 10. Criminal Effects of Reduction
- §9.29 B. Honorable Discharge from California Youth Authority
- §9.30 IV. Motion to Reduce Misdemeanor to Infraction
- §9.31 A. Definition of Misdemeanor Conviction
- §9.32 B. Immigration Effections of Infractions
- §9.33 C. Criminal Benefits of Reducing Misdemeanors to Infractions
- §9.34 D. Motions to Reduce Misdemeanors to Infractions
- § 10 State Rehabilitative Relief
- §10.1 I. Introduction
- §10.2 II. Immigration Effects of State Rehabilitative Relief
- §10.3 A. General Rule: State Rehabilitative Relief Does Not Eliminate the Immigration Consequences of a Conviction
- §10.4 B. Exception: Federal First Offender Act and its Analogues
- §10.5 1. Eligibility
- §10.6 a. Prior Conviction
- §10.7 b. Foreign Prior Convictions
- §10.8 c. Prior No-Conviction Diversion
- §10.9 d. Probation Violations
- §10.10 e. Prior Drug Conviction
- §10.11 f. Non-Probation Sentences
- §10.12 g. Simultaneous Multiple Qualifying Convictions
- §10.13 h. Disqualification from Effectiveness of Relief
- §10.14 i. Expungements In Process But Not Yet Granted
- §10.15 2. Expungement Statutes Need Not Be Identical to the FFOA
- §10.16 a. Qualifying Offenses
- §10.17 b. Procedure
- §10.18 c. Legal Effect
- §10.19 d. Travel Warning
- §10.20 C. Prospects for this Rule in Other Circuits
- §10.21 D. Even Where State Rehabilitative Relief is Effective to Eliminate a Conviction, the Underlying Conduct Can be Considered as a Negative Discretionary Factor
- §10.22 III. Protecting the Client Before Relief is Available
- §10.23 A. Immigration Court
- §10.24 1. Obtaining a Continuance
- §10.25 2. Seeking Appellate Review
- §10.26 B. Criminal Court
- §10.27 1. Avoiding a Final Conviction
- §10.28 2. Expediting Rehabilitative Relief
- §10.29 IV. Judicial Recommendations Against Deportation
- §10.30 A. Immigration Effects
- §10.31 1. Deportation Grounds Excused
- §10.32 2. Varieties of Immigration Effects
- §10.33 3. Foreign JRADs Ineffective
- §10.34 4. Continuing Validity of Pre-1990 JRADs
- §10.35 B. Procedure
- §10.36 1. Notice to Immigration Authorities
- §10.37 2. Timing of Effective JRAD
- §10.38 C. Ineffective Assistance of Counsel in Failing to Seek JRAD
- §10.39 1. Ground to Vacate Sentence
- §10.40 2. Remedy to Allow Timely JRAD
- §10.41 D. Retroactivity of Repeal of JRAD Authority
- §10.42 1. Effective Date of Repeal
- §10.43 2. Ex Post Facto Argument
- §10.44 E. Government May Not Attack Validity of JRAD in Immigration Court
- §10.45 V. Executive Pardon
- §10.46 A. Immigration Effects of a Pardon
- §10.47 1. Qualifying Deportation Grounds
- §10.48 2. Immigration Benefits
- §10.49 3. Nature of Effective Pardon
- §10.50 4. Foreign Pardons Ineffective
- §10.51 B. Experience in California
- §10.52 VI. Expungement Where Probation Was Imposed (Penal Code 1203.4)
- §10.53 A. Mandatory Expungement Upon Early Termination
- §10.54 B. Mandatory Expungement for Successful Completion
- §10.55 C. Discretionary Expungement in Other Cases
- §10.56 VII. Procedure
- §10.57 A. Dealing with the Probation Department
- §10.58 B. Dealing with the Court
- §10.59 VIII. Misdemeanors and Infractions
- §10.60 A. NonProbation Sentences in Misdemeanors
- §10.61 B. Dealing with Infractions
- §10.62 IX. Developing a Strategy to Expunge A Qualifying Conviction
- §10.63 X. Problem Circumstances
- §10.64 A. Motions to Shorten Probation in Order to Become Eligible for Expungement
- §10.65 B. Expungements After Client Has Picked Up New Charges
- §10.66 C. Where Criminal Records Have Been Purged
- §10.67 1. Expungement Should Be Possible Despite the Absence of the Court File
- §10.68 2. Absent the Court File, the Prosecution Cannot Demonstrate that the Plea Was Constitutional
- §10.69 3. Absent the Court File, the Prosecution Cannot Demonstrate that the Plea Was Obtained in Compliance with Penal Code 1016.5's Mandatory Requirements
- §10.70 XI. Other Forms of Rehabilitative Relief
- §10.71 A. Expungements Under Proposition 36 and Penal Code 1210.1(d)
- §10.72 B. Relief for Youthful Offenders: P.C. 1203.45 and Welf. & Inst. Code §1772 and 1179
- §10.73 C. Marijuana Arrest Record Destruction Under Health & Safety Code §11361.5(b)
- §10.74 1. Immigration Effect
- §10.75 2. Requirements
- §10.76 D. Executive Pardons
- § 11 Practical Considerations
- §11.1 I. Introduction
- §11.2 II. Dealing with Bias Against Immigrants
- §11.3 A. Defeating Bias Against Clients on the Basis of National Origin
- §11.4 B. Successful Negotiation Using the Immigration Consequences of the Conviction
- §11.5 1. The Legislature Has Determined It Is Proper For Prosecution And Defense To Renegotiate A Criminal Disposition In Light Of The Immigration Consequences
- §11.6 2. The Proposed Solution Is An Appropriate Exercise of Prosecutorial Discretion In The Present Case
- §11.7 3. Sample Negotiation Script
- §11.8 C. The Client Should Receive the Benefit of All Reasonable Doubts in These Cases
- §11.9 1. The Immigrant Receives the Benefit of All Reasonable Doubts
- §11.10 2. The Criminal Defendant Receives the Benefit of All Reasonable Doubts
- §11.11 III. Appointment of Counsel in Writ Proceedings
- §11.12 IV. Interpreters
- §11.13 A. Selecting an Interpreter
- §11.14 B. Using an Interpreter in Court
- §11.15 V. Getting the Client Released from Immigration Custody
- §11.16 A. Immigration Holds and Detainers
- §11.17 B. Bonds in Immigration Court
- §11.18 C. Mandatory Immigration Detention
- §11.19 1. Generally
- §11.20 2. Relief in Federal Court
- §11.21 VI. Obtaining Post-Conviction Relief After a Client Has Been Deported
- §11.22 A. The Post-Conviction Action is not Rendered Moot by the Client's Deportation
- §11.23 B. The Immigration Courts Retain the Power to Bring the Client Back After Deportation if the Conviction Has Been Vacated
- §11.24 VII. Exposure for Illegal Re-Entry
- §11.25 A. The Elements of the Offense
- §11.26 B. Defending an Illegal Re-Entry Prosecution
- §11.27 VIII. Obtaining a Client's Presence in Court
- §11.28 A. Clients in Immigration Custody
- §11.29 B. Clients Who Have Already Been Deported
- §11.30 C. Clients Who Have Returned Illegally
- §11.31 IX. Obtaining Evidence from the Client After Deportation
- §11.32 X. Finding Expert Legal Assistance
- §11.33 A. Finding Post-Conviction Counsel
- §11.34 B. Finding Immigration Counsel
- § 12 Vacating the Conviction
- §12.1 I. Introduction
- §12.2 II. Documenting the Victory
- §12.3 A. Obtaining Certified Copies of the Order Vacating the Conviction or Sentence
- §12.4 B. Correcting FBI Criminal History Reports
- §12.5 C. Correcting State Criminal History Records
- §12.6 III. Procedural Rules Governing the New Prosecution
- §12.7 A. Right Against Vindictive Re-Prosecution
- §12.8 B. Credit for Time Served
- §12.9 C. Disqualification of Judge
- §12.10 D. Statute of Limitations
- §12.11 IV. Obtaining a New Outcome
- §12.12 V. Safer Alternative Dispositions
- §12.13 VI. Diversion and Deferred Entry of Judgment Programs
- §12.14 A. Misdemeanor Diversion
- §12.15 B. Drug Diversion Programs
- §12.16 1. Deferred Entry of Judgment Constitutes A Conviction for Immigration Purposes
- §12.17 a. Deferred Entry of Judgment
- §12.18 b. Ex Post Facto Issue
- §12.19 2. Former Drug Diversion
- §12.20 3. Proposition 36 Drug Treatment
- §12.21 C. Other Less Common Forms of Diversion
- §12.22 1. Former Domestic Violence Diversion, Former Penal Code §1000.61000.11
- §12.23 2. Diversion for Mentally Retarded Defendants
- §12.24 3. Child Abuse Diversion, Penal Code 1000.12
- §12.25 D. Dismissal of Charges Under Penal Code 1385
- §12.26 E. Plea Negotiations
- §12.27 VII. Wrapping up the Case
- Table of Authorities
- Index
- About the Authors
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